Rule of Law and the Fijian Economy

Speech by Professor Biman Prasad, Leader of the National Federation Party at the University of Fiji, Law School, Samabula Campus, Suva, Fiji, on 9 May 2018

Thank you for inviting me to address all of you budding lawyers. I have no doubt at all that when you enter the legal profession fully qualified as lawyers, you will find yourselves in a much better environment, free of what I call as regressive legalities that currently prevail.

But then again, such obstacles do provide the perfect training ground for all of you to arrest some of the wrongs that you already know, plague us as a society.

I have an affinity with lawyers. My only son is a lawyer in Wellington, New Zealand. Four of NFP’s former leaders, including the Party’s founder Mr Ambalal Dayabhai Patel or A D Patel, Mr Siddiq Moidin Koya or S M Koya, Mr Harish Chandra Sharma and Mr Jai Ram Reddy,  were giants of their time and can be rightly called as statesmen — were highly famous and successful lawyers.

Mr Jai Ram Reddy, after retiring from politics, went on to serve as President of the Fiji Court of Appeal, and famously served as one of the 17 judges on the United Nations International Criminal Tribunal for Rwanda. He was one of the three judges who presided over the main case of the Rwanda genocide, and duly delivered justice.

But most importantly, I have a soft spot for lawyers because given Fiji’s repressive laws, politicians like me never know when they might need one! My arrest in September 2016, together with other Opposition figures, namely two former Prime Ministers, one former Deputy PM, a prominent civil society personality and a leading trade unionist who happened to be a former NFP leader, is a classic scenario where bold lawyers come to our assistance and choose to uphold truth and justice.

In five days’ time on 14th May, Fiji’s coup culture would be 31 years old. I’m not sure if many of you would have studied this during the course of your reading law, but that was when the democratically elected NFP/FLP Coalition Government headed by Dr Timoci Bavadra, was overthrown at the barrel of the gun in 1987.

I was young and only just beginning my foray into politics, but then many of our youth naively believed that the rule of law that had its genesis in a coup was the way forward. A coup can never justify breaking the law and undermining the Will Of The People — as law students, I’m sure I do not have to tell you that.

Since 14 May 1987, three more coups have been executed.

Coup number two on 25th September 1987, saw the Deuba Accord was overthrown which was negotiated by the then Governor General as the way forward out of the crisis.

Coup number three on 9th May 2000 overthrew the Peoples Coalition Government, and held the majority of  the members of that government hostage.

Coup number four occurred on 5th December 2006. How many of you law students, remember that one?

I should add that the fourth coup of 05 December saw the abrogation of the 1997 Constitution, and trashing of the Fiji Court of Appeal judgment of 10th April 2009 which had declared the 2006 coup as an illegal act.

The abrogation of the 1997 Constitution and trashing of the 2009 Coup of Appeal judgment, is in my humble “un-legal” opinion, also a coup of sorts, very similar to the 2nd coup of 25th September 1987 that overthrew the Deuba Accord.

Why am I rehashing all this for you? It is simply because I hope to spark some discussion among you about the cost of coups TO US ALL – you, me, your parents, grandparents, aunts, uncles, siblings, village, community, settlement, friends, religious organisations — we all bear the cost of coups. And Fiji, a small country with a population still of less than a million people, has had 4 such disruptively, illegal coups.

Military coups mean that the ‘rule of law’ is disrupted by force. The ones who can command the barrel of a gun against unarmed civilians, overturns their political right and decision of who they voted for to lead the country.

Military coups have had negative impacts on the economy and it has taken a long time to recover. Whether, it is the 1987 coup, whether it is the 2000 coup or the 2006 coup, the impact has been enormous and the cost to the country has been exponential. It is therefore vital that we talk about the rule of law and the economy together.

Adam Smith, who in my field of expertise is renowned as the “Father of Economics” in his 1776 book, Wealth of Nations stated the following which underlines the critical relationship between the economy and the rule of law. He said, and I quote:

“Commerce and manufactures can seldom flourish long in any state which does not enjoy a regular administration of justice, in which the people do not feel themselves secure in the possession of their property, in which the faith of contracts is not supported by law, and in which the authority of the state is not supposed to be regularly employed in enforcing the payment of debts from all those who are able to pay. Commerce and manufactures, in short, can seldom flourish in any state in which there is not a certain degree of confidence in the justice of government.” – Unquote

There are many theories as to who ordered the execution of the coups. Like you lawyers where your craft is based on words and the nuances of words, politicians like me also treat “words” as tools.

So let us refer to a public statement of 22nd May 2008 by the then RFMF Commander, who was also the military regime’s Prime Minister and now our current Primes Minister, tells us that the military carried out the coups because politicians had failed.

In an interview aired by Fiji One’s In-Depth Report of 23rd May 2008 at a church opening in Nadoi, Rewa. The report showcasing the event quotes the then Commander of the RFMF, also the military regime’s Prime Minister and now our current Primes Minister saying, “Politicians had failed us and that is why the military took over in 1987, 2000 and 2006”, – unquote.

If you, as legal students were to examine these words, and of course assess the fullest facts of this scenario, what would you make of such statements?

In 2006, prior to the coup the then Multi-Party SDL/FLP Cabinet was in government for only five and a half months.

In 2000, prior to the coup of that year, the Peoples Coalition Government was in power for exactly one year.

In 1987, the NFP/FLP Coalition Government was just settling in, having been in power for only 5 weeks.

So how could have politicians failed? These are issues that the current government, which was also a military regime, conveniently evades a discussion on.

Instead it tries to whip up frenzy about “dark days” of the 1987 and 2000 coups, while conveniently ignoring the 2006 coup because it targets the emotions of Indo-Fijians who were primarily victims of the first three coups.

May 14 is also significant for another reason not just for political upheaval, but it signals the first entry of what then was an indentured community or Girmitiya into Fiji.

14th May 1879 was the date when the first batch of Indian indentured labourers arrived in Fiji to work on our sugar plantations. From 1879 until November 1916, some 60,553 indentured labourers or Girmitiya graced our nation.

The descendants of Girmitya, of which I am also a proud one, when given the choice by the colonial leadership at that time to leave, chose to make Fiji their home and have made Fiji their home and contributed vastly to this nation’s social, economic and political advancement.

So have many of their descendants, until they migrated to Australia, New Zealand, United States and Canada – after Independence in small numbers – but certainly in droves after the four coups.

Statistics show that a lot of Fijians, and we are quite sure, a lot of them would be Indo-Fijians who have migrated, have taken up dual citizenship to ensure they possess the blue passport of Fiji. We are also aware, that until very recently, more iTaukei are also migrating abroad.

Remittance from our people overseas is probably the second largest revenue earner for Fiji, after tourism. The contribution of our people abroad, back home, to support the livelihoods of their families in Fiji, as well as to our economy, is highly significant.

Usurping the rule of law or tinkering with laws has a negative effect on a nation’s economy. But if democratic changes are done to restore dignity, justice and equality, we see the changes to the economy such that realistic growth will not be a consumption driven economy, as we have seen for the last 11 years. Governments borrow to finance expenditure. For example, the deficit for 2017/2018 financial year is 4.5% of GDP which stands at 10.9 billion. The current debt level stands at $4.72 billion and the projected debt by 2020 is expected to rise to $6.18 billion. The debt repayment for 2017/2018 financial year is about $525 million dollars of which about $297 million is interest alone. This means that we need an outlay of about $43 million dollars per month. Borrowing is not necessarily bad but if expenditure out of borrowing does not contribute to reasonable economic growth, then in the long run the debt levels will become a drag on the economy.

Let us fast-forward to 2014 where the implementation of the 2013 Constitution was forced down all of us via promulgation. We say it was forced down because the previous 1997 Constitution that was abrogated underwent extensive consultations. The NFP was very involved in that process of formulation of the 1997 Constitution, and that Constitution was widely hailed because of its progressive Bill of Rights provisions.

Our NFP Leader at that time, Justice Jai Ram Reddy, was the first Indo-Fijian leader to have ever been invited to the Great Council of Chiefs to present his thoughts on the 1997 Constitution.

On 06 June 1997, in his speech to the GCC on the 1997 Constitution, he said this:

For the last several months, a multiracial, multi-party parliamentary committee has been on a quest for a new direction in our national politics. This committee, as you know, comprises representatives of the main political parties, speaking to the vast majority of the electorate.

I am so proud to tell you, that for the first time, all of these parties are speaking with one voice. We have attained what previously seemed unattainable. We have found a comprehensive middle ground. By confronting our fears honestly and openly, we have let light into the dark corners of the national soul – and found hope.

It is our belief that we have agreed on a constitutional formula which will encourage us – Fijians, Indians and everyone else – to stand together. We want to convert what has been a political culture of confrontation into a culture of cooperation. In a broadly based national government, we can complement each other and concentrate, together, on the vital needs of a developing nation.

In contrast, the 2013 Constitution had no public consultation which is contrary to what a nation’s founding document that is supposed to the “For the People” should inherently possess. Particularly when our parliamentary democracy and constitutional governance is based upon such a document.

As budding lawyers, I am confident that you are wide aware to what is happening around you. Even if you were in primary school when the 2006 coup occurred, over the years in your very own homes you would have felt the very real link between what is happening when the rule of law is torn up, and what kind of food you are able to eat, or your families spending power.

For a solid economic platform we need sound and sensible leadership that upholds the rule of law. The Rule of Law and the Economy are like twin sisters. One cannot function without the other.

An elected government does not abuse the mandate of the people. When a government is elected, there is a Social Contract between the People and the Government. The people have certain expectations and the Government is expected to fulfill them. Democracy is about respecting the views of the people. Democracy is not about political arrogance or disdain.

Unfortunately, Fiji’s last two governments, headed by the same leader, does not always follow democratic norms.

From January 2007 to September 2014, the military government ruled through decrees and promulgations, totally suppressing fundamental rights and freedoms including media freedom.

When parliamentary democracy resumed in October 2014, the same military regime, which was elected as a Fiji First Government, did little to change course from its confrontational and dictatorial attitude.

In fact all the decrees, now acts (only because they were bundled as a group of Acts but should have been individually debated), are preserved under section 173 of the 2013 Constitution. Many of these decrees such as the electoral decree, media decree, and political parties decree in our view are repressive laws that restrict peoples freedom and human rights.

The very fact that the foundations of parliamentary democracy such as the 2013 Constitution are imposed and has led to many problems and deterioration of several sectors in this country, as cosmetic solutions applied to them by this government, start falling apart.

The track record of this Government is abysmal and some of it is:

(1) Government betrayed its 2014 election promise not to impose VAT on 7 basic food items by re-imposing 9% VAT from 1st January 2016 as well as imposing VAT on prescription medication. As a result the cost of living has increased dramatically.

(2) The sugar industry is struggling for survival. On 30th September 2017, the European Union sugar production quota also ended. No solution is in sight. All we hear is that the Fiji Sugar Corporation will pre-sell sugar! The Prime Minister rejected our repeated calls for bipartisanship to collectively overcome the challenges faced by the industry. Yet Government is wandering aimlessly to find solutions.

(3) Government kicked out our petition to rebuild the Penang sugar mill. Another petition seeking the implementation of a minimum guaranteed price of $100 per tonne was disallowed from being tabled in Parliament.

(4) Government has repeatedly rejected the Opposition’s motions to increase allocation for kidney dialysis from the meagre $300,000 it used to allocate.

(5) Our public hospitals have become blight on the nation. Even the free medicine subsidy is shambolic.

(6) The minimum wage has been increased from $2.32 to 2.68 while hefty salaries for Prime Minister and Cabinet Ministers were prescribed through a Decree 3 days before the start of the 2014 Parliament.

(7) The allowances of Office holders and all parliamentarians were unethically and massively increased in September 2016 when Fiji was reeling from the effects of Severe TC Winston.

(8) The parliamentary Standing Orders were changed to remove the provision of an Opposition Member chairing the all-important Public Accounts Committee. The Government has now reached the point where it is prepared to support the change the Auditor-General report after it was presented to parliament on the basis of so-called “errors” in his reporting. These were not errors. They were just facts that the Government did not like.

(9) The Open Merit Recruitment System is a farce as seen in the review of salaries of teachers, downgrading of substantive positions to Acting appointments and bonding them into a contract.

(10) Civil servants have been forced to accept contractual employment with no guarantee on their security of employment.

This is just a sample of the scorecard of a control freak government.

The government claims faster and unprecedented economic growth. While GDP growth has increased in the last 4 years, this has mainly been a result of populist spending based on borrowing.

Let us put GDP growth into a longer term perspective and then see this government’s record. Average real growth between

  • 1971-1980 was 4.8%,
  • 1981-1990 was 2.4%,
  • 1991-2000 it was 2.5%
  • but the lowest average growth of 2.2% was between 2007-2016

under the Bainimarama Military government and the Fiji First government.

This is a government which has been bold on dreams, but poor on delivery and keeping some of their promises. Populism does not always translate into the uplifting of the standard of living of our people.

There are serious issues facing the agricultural sector, sugar industry, the dairy industry and I believe the tourism industry is slowly heading towards distress.

The decline in these sectors can be directly attributed to ill-conceived and flawed economic policies.

The protection provided to one company has almost led to the demise of the dairy industry.

The sugar industry shows no signs of recovery despite cosmetic and knee-jerk policies to rescue the industry.

The tourism industry is showing signs of distress. There is a declining trend in number of tourists coming from Australia. Australia and NZ combined give us about 64% of the total tourist numbers. Departure tax from Fiji is considered to be the highest in the world. Airport fees and charges are also high in terms cost. The overall holiday cost is high compared to Bali which is Australia’s 2nd most popular destination. The tourism industry needs complementarity with aviation policies which is missing at present. We need to review the taxes, fees and charges so that we can create confidence in the tourism industry for the future.

What we will do

  • We will renew and reinvigorate the National Economic Summit process and consult widely with key stakeholders
  • We will slash the red tape and simplify the rules and regulations for all investors, whether they are large foreign corporations, or young people who wish to market an app. We know that the World Bank Ranking on the ease of doing business in Fiji is poor.
  • We’re looking very carefully at TELS and continuing consultations with young people who have given us some very thought-provoking ideas.
  • We will simplify the tax system and ensure that it is attractive to both local and foreign investors so that people spend less time worrying about whether they have met all the rules and regulations
  • We will hold nationwide consultations on the issues that are vital for Fiji going forward: education, health, housing, land use, the sugar industry. These will be the focus of an NFP government.

We in the NFP will have a lot to say about these things in the coming weeks and months.

So to the people of Fiji, we say, enjoy the benefits that the Government has given you after all, it is your money they are spending. But better government, and better economic management, is coming.  I believe CHANGE IS COMING!

Thank you for the invitation.